Dwyer Nolan Developments Ltd. v. Kingscroft Developments Ltd. [1998] IEHC 125; [1999] 1 ILRM 141 (30th July, 1998)

Dwyer Nolan Developments Ltd. v. Kingscroft Developments Ltd. [1998] IEHC 125; [1999] 1 ILRM 141 (30th July, 1998)

The Plaintiff is entitled to a right of way to his land-locked property by implication and necessity, having regard to the intention of the parties, the development context, and the divergence of Irish law from English law on the scope of ways of necessity. The Court found that the circumstances and contract terms supported the implication of such a right to prevent the retained land from being rendered useless.

Citation
[1999] 1 ILRM 141
Parties
Plaintiff: Dwyer Nolan Developments Limited; Defendant: Kingscroft Developments Limited
Jurisdiction
Ireland
Procedural Posture
Civil / Judgment After Motion to Strike Out and Full Hearing
Outcome
Plaintiff entitled to right of way; matter adjourned for resolution
Legal Topics
Right of Way, Implied Easements, Way of Necessity, Construction of Conveyances, Planning Permission and Access
Property Law Easements Land Law Right of Way Implied Easements Way of Necessity Construction of Conveyances Planning Permission and Access

Case Brief

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Parties

Dwyer Nolan Developments Limited

Plaintiff

Kingscroft Developments Limited

Defendant

Procedural Posture

Civil / Judgment After Motion to Strike Out and Full Hearing

Legal Issues

  1. 1 Whether the Plaintiff is entitled to a right of way over the Defendant's lands to access retained lands
  2. 2 Whether such right arises expressly, by implication, or by necessity
  3. 3 Whether the Defendant's actions derogated from the Plaintiff's grant

Ratio Decidendi

The Plaintiff is entitled to a right of way to his land-locked property by implication and necessity, having regard to the intention of the parties, the development context, and the divergence of Irish law from English law on the scope of ways of necessity. The Court found that the circumstances and contract terms supported the implication of such a right to prevent the retained land from being rendered useless.

Court Disposition

Plaintiff entitled to right of way; matter adjourned for resolution

Orders

  • Adjournment for six months to enable parties to resolve access issue with local authority
  • If not resolved, Court to be addressed on alternative orders